MENTZEN alias MENCENA v. LATVIA DECISION 5
FOURTH SECTION
DECISION
ON ADMISSIBILITY
Application no. 71074/01
by Juta MENTZEN also known as MENCENA
against Latvia
The European Court of Human Rights (First Section), sitting on 7December 2004 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki, judges,
Mrs I. Ziemele, ad hoc judge,
and Mr O’Boyle, Section Registrar,
Having regard to the above application lodged on 22 June 2001,
Having regard to the observations and additional observations submitted by the Government and the observations in reply submitted by the applicant,
Having deliberated, delivers the following decision:
THE FACTS
The applicant is a Latvian national who was born in 1972 and currently lives in Belgrade (Serbia and Montenegro). The respondent Government were represented by Ms I. Reine, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.Particular circumstances of the case
1.Change in the written form of the applicant’s surname
On 29 December 1998 the applicant married a German national, MrFerdinand Carl Friedrich Mentzen. The marriage was celebrated and registered at Bonn II Registry Office (Standesamt Bonn II) in Germany, which delivered a marriage certificate (Heiratseintrag) to the couple the same day. In the marriage certificate the applicant was given her husband’s surname “Mentzen”.
In August 1999 the applicant asked the Nationality and Migration Service of the Latvian Ministry of the Interior (Iekšlietu ministrijas Pilsonības un migrācijas lietu pārvalde, hereafter the “Nationality and Migration Service”) to replace her former Latvian passport that had been issued in her maiden name with a new passport in her new surname. She made an express request for her new surname to be retranscribed correctly, without any amendment.
On 10 September 1999 the Nationality and Migration Service issued the applicant with a new Latvian passport. However, on page 3, the main page containing all the passport holder’s basic details, her surname appeared as “Mencena”, not “Mentzen”. Officials at the Nationality and Migration Service explained to the applicant that the changes in the written form of her surname had been made on the basis of Regulation no. 174 on the transcription and identification of forenames and surnames in documents, which required all surnames and forenames to be reproduced “in accordance with the spelling rules of the Latvian literary language” and “as near as possible to their pronunciation in their original language”. Consequently, the affricative consonant “tz” was replaced by the letter “c”, which is pronounced [ts] in Latvian and therefore has the same phonetic value. Likewise, the inflectional ending “-a” was added to the applicant’s surname, denoting the feminine nominative singular. However, in the section entitled “special remarks” (Īpašas atzīmes) on page 14 of the passport, the Nationality and Migration Service affixed a special stamp certifying that the original form (oriģinālforma) of the surname was “Mentzen”.
After trying in vain to persuade the officials at the Nationality and Migration Service who had issued her with the passport to rectify the written form of her surname, the applicant lodged an internal appeal with the departmental head. She argued among other things that the phonetic transcription and grammatical adaptation of her surname had violated her right to respect for her family life, as guaranteed by Article 8 of the Convention. On an unspecified date the departmental head dismissed her appeal on the grounds that page 14 of the passport in any event provided the original version of the surname “Mentzen” and that there had therefore been no alteration to the surname.
2.Court proceedings
The applicant issued proceedings against the Nationality and Migration Service in the Court of First Instance of the Riga City Centre District, which dismissed her claim in a judgment of 23 March 2000. After referring to an opinion of the linguistic consultations department of the Institute of the Latvian Language (Latviešu valodas institūta Valsts valodas konsultāciju dienests) dated 21 December 1999 which stated that the transcription of the German name “Mentzen” into Latvian had to be “Mencena” for a woman, the Court of First Instance found that the applicant’s surname had been transcribed in accordance with the applicable regulations, namely Regulation no. 310 on the passports of Latvian citizens and Regulation no.174 on the transcription and identification of forenames and surnames in documents. It also pointed out that persons finding themselves in that situation could always have the original form of their surname entered in the section of the passport entitled “special remarks” if they so wished.
The applicant appealed against that judgment to the Riga Regional Court, arguing, inter alia, that the Court of First Instance had misconstrued the domestic legislation. In her appeal the applicant criticised the very principle of “Latvianisation” of the written form of foreign surnames and forenames. In her submission, the two sets of regulations cited in the impugned judgment violated the right to respect for private life guaranteed by Article 8 of the Convention and Article 96 of the Latvian Constitution. The applicant also pointed out that neither the Official Language Act nor the relevant regulations required any grammatical or spelling changes to foreign trademarks or commercial undertakings. That being so, it was questionable whether such a practice with regard to names was either necessary or proportionate. Lastly, the applicant said that, owing to the change in the written form of her surname, she and her husband now had two different surnames in their identity papers, which made their identification as members of the same family more difficult.
In a judgment of 24 October 2000 the Regional Court dismissed the applicant’s appeal. After noting that the Nationality and Migration Service had fully complied with the applicable law and regulations, it accepted that the situation complained of could be regarded as interference with the right guaranteed by Article 8 of the Convention. However, it considered that the interference, which was intended to protect the Latvian language, was consistent with the second paragraph of that provision. With regard to the applicant’s submission that different rules applied to trademarks and company names, the Regional Court considered that it had no bearing on the case before it, since people’s names fell into a completely different category and were governed by special rules.
The applicant appealed on points of law to the Cassation Division of the Supreme Court, arguing inter alia that the protection of the Latvian language could not be a legitimate aim for which restrictions were permitted by Article 116 of the Constitution and Article 8 § 2 of the Convention. In a judgment of 31 January 2001, the Cassation Division dismissed her appeal, holding that since the original form of the surname “Mentzen” appeared on page 14 of the passport, there had been no violation of her right to respect for her private life.
3.Proceedings in the Constitutional Court
After amendments to the Constitutional Court Act (Satversmes tiesa) had come into force, the applicant lodged an appeal (konstitucionālā sūdzība) with that court seeking a declaration that section 19 of the Official Language Act and Regulation no. 295 on the transcription and identification of forenames and surnames were unconstitutional. She submitted that the impugned provisions contravened Articles 96 and 116 of the Latvian Constitution.
The Constitutional Court decided the issue in a judgment of 21December 2001 (case no. 2001-04-0103). After acknowledging that surnames came within the scope of private life, it stated:
“... (2)... The Constitutional Court accepts the applicant’s argument that the ‘Latvianisation’ [latviskošana] of her surname affected her emotionally. The fact that her surname is not spelt in the same way as her husband’s is a source of unpleasantness and social inconvenience. It makes daily life more complicated, as she has to give additional explanations on her relationship with her partner. While the misunderstandings are eventually cleared up, it all takes time.
... One of the main functions ... of the forename and surname is to make it possible to identify people and to determine the relationship of the person concerned with his or her family.
In view of the applicant’s mental attitude to the transcribed surname and the complications it entails in daily life which, especially abroad, can be seen in the difficulty which others have in determining her relationship with her family, and since the stability of the surname affects not only the individual’s private life but also the interests of society, the provision requiring foreign surnames in passports issued in Latvia to be transcribed in accordance with the traditions of the Latvian language and its linguistic rules must be considered to constitute interference in private life.
(3) ... (3.1)... [The] interference in the applicant’s private life is in accordance with the law, as it has been provided for by regulations issued by the Cabinet.
(3.2)The applicant’s argument that the Latvian transcription of her surname does not pursue any of the aforementioned legitimate aims is without basis. Names are one of the features of the language and the issue of the rules applicable thereto affects the entire system of the language. It can be seen from the case file that the applicant in fact criticises the very principle of transcribing foreign surnames, which is a characteristic of the Latvian language. Consequently, in order to determine whether the interference ... pursues a legitimate aim, it is necessary to examine the role of the Latvian language in Latvia.
By declaring that the official language of the Republic of Latvia is Latvian, Article4 of the Constitution accords it constitutional status. The constitutional status of the official language reinforces the legal basis for the use of Latvian in documents issued by the Republic of Latvia. Regard being had to the fact that a Latvian citizen’s passport is an official document which not only identifies the person concerned, but also attests to a permanent legal link between the individual and the State, that person’s surname and forename must be written in the official language.
... The Constitutional Court agrees with the opinion of the expert [I.D.] that the surname is used not just by the person so named, but also by society. Consequently, surnames must be regulated ... for the convenience of members of society.
Owing to historical factors, in particular the fact that the proportion of Latvians [of origin] on the national territory has diminished during the course of the twentieth century, the Latvian nation represents only a minority in some large towns, including Riga ..., and the Latvian language has only recently recovered its status as the official language. The need to protect the official language and to consolidate its use is, therefore, closely linked to the democratic regime of the Latvian State.
Regard being had to the fact that, ... in the context of globalisation, Latvia is the only place in the world where the existence and development of the Latvian language and, by the same token, the Latvian nation, can be guaranteed, a restriction or limitation on the use of [this] language ... on the national territory constitutes a threat to the democratic regime of the State.
[In a recent judgment,] the Constitutional Court of Lithuania also came to the conclusion that the official language helps to preserve national identity, unites the nation, and serves to express national sovereignty and the indivisibility of the State...
That being so, the purpose of the interference in the applicant’s private life was to protect the right of other residents of Latvia to use the Latvian language freely throughout the national territory and to protect the democratic regime of the State. Accordingly, the interference ... pursued legitimate aims.
(4) ... [It] is necessary to examine whether the interference [in issue] was proportionate to the legitimate aims [it pursued].
(4.1)... the Constitutional Court has no doubt that the written form of names in documents has a direct bearing on the other spheres in which the language is used, as they are closely connected. If the written form of foreign names in documents was only permitted in their original form, it would be coherent and logical for their use [in this form] to spread progressively because names are used in different texts. It is impossible to isolate the written form of the foreign names in identity papers from [their written form in other types of document]. That would seriously threaten the quality of the Latvian language and, therefore, the function of [this] language in society...
The evidence in the case file shows that the [impugned] interference has not prevented the applicant ... from exercising other rights she possesses, such as to cross her and other States’ borders, to vote in elections and to receive mail. The inconvenience an individual might suffer in his or her daily life does not constitute a sufficient ground for not applying rules that are the consequence of the language’s official status.
The Constitutional Court considers that the damage to the functioning of the Latvian language as a single system that would result from writing foreign names in their original form only would outweigh the inconvenience individuals might suffer as a result of using a passport issued in a surname transcribed in accordance with the traditions of the Latvian language.